President Vetoes FMLA Amendments Extending Leave to Families of Servicemembers, New Legislation Expected

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January 17, 2008

For reasons unrelated to proposed Family and Medical Leave Act amendments, President George Bush has vetoed a defense authorization bill that included provisions providing for (a) up to six months of leave for family members caring for military veterans injured while on active duty in the U.S. Armed Forces and (b) 12 weeks of leave to family members of service members called up to active duty under certain circumstances.  The president has stated he supports the FMLA amendments which have extremely broad Congressional support.  New legislation is likely to be passed in early 2008 and is expected to be signed by the president.

If modeled after the legislation previously passed by Congress, the new legislation would modify in several significant ways the federal Family and Medical Leave Act of 1993, which currently provides qualifying employees up to 12 weeks of unpaid leave per year to care for their own or a family member's serious medical condition.

For example, the legislation vetoed by the president would have more than doubled the available time off from work to care for injured servicemembers, from 12 to 26 weeks per year, and make eligible for leave a new category of employees who have immediate family members called to active duty, apparently without regard to any medical issues.  It would have covered leaves to care for members of the Armed Forces, including the National Guard or Reserves, who have suffered a serious injury or illness in the line of duty while on active duty, that may render the members medically unfit to perform the duties of their office, grade, rank or rating.  It applied broadly to service members who are undergoing medical treatment, recuperation or therapy, are in outpatient status, or otherwise are on the temporary disability retired list, for a serious injury or illness. For this type of leave, the legislation would have expanded the definition of covered employee to include the next of kin, or nearest blood relative, of a covered service member.

The final legislation passed by Congress also contained a provision providing up to 12 weeks of leave because of any qualifying exigency arising out of the fact that a covered employee's spouse, child or parent is on or has been called to active duty in the Armed Forces. Contingent upon the Department of Labor's definition of a qualifying exigency, this provision would provide 12 weeks of leave to the immediate family of service members called to active duty and would complement state family military leave laws that provide for shorter duration of leave or only cover spouses of servicemembers. An employer may require that a request for such leave be supported by certification showing that the servicemember has been called to active duty. Seven states (California, Illinois, Indiana, Maine, Minnesota, Nebraska and New York) have passed state family leave laws which are somewhat different than the new federal law. (See related articles Growing Number of States Passing Family Military Leave Acts and California Adopts Time Off Requirement for Military Spouses.)

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Because new legislation likely would amend the 1993 statute, other FMLA requirements, such as the requirement that returning employees be restored to the same position as when their leave commenced and the requirement to continue group health plan coverage during the leave, would apply to newly granted types of leave. Employers should continue to watch for this potential FMLA expansion and be prepared to amend their FMLA policies to provide employees with notice of any new leave entitlements.

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© 2007 Jackson Lewis LLP.  Reprinted with permission.  Originally published at  Jackson Lewis LLP is a national workplace law firm with offices nationwide.

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